Travis v. Travis

• Decision Date: 24 May 2005
• Docket Number: No. WD 64083.,WD 64083.
• Citation: 163 S.W.3d 43
• Parties: Selta TRAVIS, Respondent, v. Jerry TRAVIS, Appellant.
• Court: Missouri Supreme Court

Page 43

163 S.W.3d 43

Selta TRAVIS, Respondent, v. Jerry TRAVIS, Appellant.

No. WD 64083.

Missouri Court of Appeals, Western District.

May 24, 2005.

COPYRIGHT MATERIAL OMITTED

Bradley P. Grill, Kansas City, MO, for Appellant.

John E. Chick, Jr., Kansas City, MO, for Respondent.

Before: LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.

ROBERT G. ULRICH, Judge.

The marriage of Selta May Travis and Jerry Dale Travis was dissolved by judgment on March 16, 2004. Mr. Travis asserts three points on appeal. He claims as point one that the court erred by requiring him to pay an equalization payment to Mrs. Travis in the division of the marital property and in allocating the entire marital debt to him. He claims as his second point that the court erred in not stating the value of a portion of a retirement plan determined to be marital property, in dividing that plan between the parties, and in classifying certain personal property items as both marital and non-marital property. Finally, as his third point, Mr. Travis claims the court erred in requiring him to pay a portion of Mrs. Travis' attorney fees.

The judgment is reversed and the case is remanded for further proceedings.

Facts

Jerry and Selta Travis were married on April 1, 1995, in Edgerton, Missouri, and their marriage was registered in Platte County. The parties separated on or about March 3, 2003. On March 10, 2003, Mrs. Travis filed her Petition for Dissolution of Marriage. Mr. Travis filed an Answer and Cross-Petition on April 30, 2003.

Trial was conducted on January 26, 2004. Both parties appeared in person and by counsel. The trial court took all issues and evidence presented under advisement and entered judgment on March 16, 2004. The court found that Mrs. Travis was able to support herself through appropriate employment, and neither party was awarded periodic maintenance. The court identified the parties separate property and awarded it respectively and divided and awarded the marital assets in accordance with Chapter 452 RSMo. The court identified the marital debt to be $82,123.53, incurred by the parties through February 28, 2003, and ordered Mr. Travis to pay it. The court found that the portion of Mr. Travis' World Span Retirement fund accumulated from the date of the marriage, all of his 401K account, and all of his Federal Express Pension plan were acquired during the marriage and were marital property. The court ordered that the retirement plans be divided equally between the parties as of the date of the court's judgment. The court found that Mr. Travis had purchased the house used by the parties as their marital residence prior to the marriage and awarded it to him as his non-marital property. The Court ordered Mr. Travis to pay to Mrs. Travis $25,000 at 9% per annum as a property equalization payment and granted Mrs. Travis a lien on the property to the sum of the equalization. Finally, the court found Mr. Travis capable of contributing to Mrs. Travis' attorney's fees and ordered him to pay to her $5,000 toward her incurred attorney fees. This appeal followed.

Standard of Review

When reviewing a marital dissolution, the decision of the trial court will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, erroneously declares or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court determines the credibility of witnesses, and reviewing authority will view the evidence and permissible inferences in the light that is most favorable to the decree. Kinder v. Kinder, 922 S.W.2d 398, 400 (Mo.App.1996); Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). The trial court exercises broad discretion in identifying and dividing marital property. Pruitt v. Pruitt, 94 S.W.3d 429, 433-34 (Mo.App. E.D.2003). Appellate authority will reverse the division of marital property if the division is so unduly weighted in favor of one party that it constitutes an abuse of discretion. Rawlings v. Rawlings, 36 S.W.3d 795, 797 (Mo.App. W.D. 2001). Division of marital property need not be equal, but it must be fair and equitable considering the circumstances of the case. Id. at 798. Section 452.330, RSMo 2000 governs the disposition of marital property in a dissolution proceeding.

Points on Appeal

Mr. Travis asserts several claims of error in three points. His first point pertains to the trial court's allocation of property and debt. He contends that in dividing the marital property, the trial court improperly ordered him to pay $25,000 as an equalization payment to his former wife. Mr. Travis alleges that the trial court further erred by allocating to him the entirety of the marital debt, totaling $82,123.53. In his second point, Mr. Travis argues that the judgment is faulty because it failed to designate a value of a portion of one of his retirement plans, yet divides it between the parties as marital property, and it errantly classifies certain personal items awarded to the parties as both marital and non-marital. In his third and final point, Mr. Travis claims that the trial court improperly ordered him to pay $5,000 to Mrs. Travis for her legal fees.

Discussion

In determining the appropriate division of marital property, the trial court must consider all relevant factors. § 452.330.1, RSMo 2000. Five factors stated in the statute are:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the non-marital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

Id. As a general proposition, the court's division of marital property should be substantially equal unless one of the statutory factors renders such a division unjust. Riddell v. Riddell, 145 S.W.3d 495, 497 (Mo.App. W.D.2004). Marital debts should be similarly divided. Id. A trial court's duty in a dissolution proceeding includes dividing "the marital property and marital debts in such proportions as the court deems just." 452.330.1 RSMo. Division of the marital property need not be equal, "but [division of the marital assets] must be fair and equitable given the circumstances of the case." Jarvis v. Jarvis, 131 S.W.3d 894, 899 (Mo.App. W.D.2004). An appellate court's review presumes that the trial court's property division is correct, and the party challenging the division bears the burden of overcoming the presumption. Id. (citing Conrad v. Conrad, 76 S.W.3d 305, 314 (Mo.App.2002)).

Neither Mr. Travis nor Mrs. Travis requested that the trial court make findings of fact and conclusions of law. When neither party requests findings of fact and conclusions of law in accordance with Rule 73.01(c), fact issues upon which no specific findings are made are considered as having been found in accordance with the result reached. Rule 73.01(c); Childers v. Childers, 26 S.W.3d 851, 856 (Mo.App. W.D.2000). Although a court is ordinarily not required to assign property values, meaningful review of the division of marital property requires evidence from which a fair and accurate valuation can be made. Waldon v. Waldon, 114 S.W.3d 428, 431 (Mo.App.2003). Insufficient evidence of valuation constitutes grounds to remand the case with instructions for the trial court to take additional evidence and to make supported findings. See e.g. Endebrock v. Endebrock, 916 S.W.2d 456, 459 (Mo.App. E.D.1996).

Analysis of the trial court's judgment reveals insufficient evidence for this court to properly determine the equity of the underlying award. Consequently, the judgment is reversed for reconsideration in accordance with the remainder of this opinion.

Equalization Payment

Mr. Travis asserts as his first point that the trial court improperly ordered him to pay $25,000 to his former wife as an equalization payment as a part of the division of the marital property and allocated to him the entirety of the marital debt, totaling approximately $82,123.53. He claims that the debt was incurred to pay the parties' marital expenses and to purchase property in which Mrs. Travis acquired an interest. He asserts that Mrs. Travis is gainfully employed and capable of paying some of the debt.

Testimony regarding the value of property was virtually non-existent. The court determined the value of the marital and non-marital personal and real property items in accordance with various exhibits filed with the court, and the judgment awarded the parties the numerous items of marital and non-marital property referenced. The court declared the marital home, acquired by Mr. Travis prior to the marriage, to be non-marital property owned by Mr. Travis and awarded it to him. Although a value for each of the items of listed property is included in exhibits, the value of the items was totaled in neither the exhibits the court relied on nor the judgment, and, thus, none is provided on appeal. The personal property listed and categorized within the several exhibits is extensive, comprehensive, and diverse and includes such items as clothing, "jewelry and personal effects," dishes, various furniture, motor vehicles, pots and pans, etc. Comparative values of the property awarded to each party were not provided at trial, and Mr. Travis does not complain about the actual distribution of the personal property. Review of the personal property items does not suggest significant variance in value between the items awarded to each party, and Mr. Travis does not assert a difference. Although the value of the distributed personal property as marital property might normally be a factor in determining whether...